Racial divisions are building in the last couple of years. White right activists are becoming more active. If we accuse someone supporting discriminatory policies of being a white supremacist, have we defamed that person? In Tennessee, Lisa Rung heard Robert Weidlich speak against LGBT persons at a school forum. Upon leaving the building, she saw Mr. Weidlich’s car and noted bumper stickers espousing a group known as the League of the South, considered by some to be a Neo-Confederate group of some sort, and a Confederate Battle flag. Mr. Rung posted a picture of the Weidlich car with the bumper stickers on her Facebook page and said, “The Fisty Family (a pejorative nickname for the Weidlich’s) are white supremacists.”

Mr. Weidlich sued Lisa Rung for defamation in state district court and won. The court awarded $12,000. Mr. Weidlich could point to a customer he lost, which cost him lost profits of $7,000. He has a car repair shop. Mr. Rung appealed. And, he claimed $5,000 in attorney’s fees. Ms. Rung appealed.

The Tennessee court of appeals looked carefully at Ms. Rung’s post. The court noted correctly that a statement of fact, stating for example, that Weidlich is a white supremacist would be defamatory. But, in this particular situation, she did not simply state he was a white supremacist. She also posted a picture of his bumper showing the stickers. In effect, said the court, Ms. Rung was expressing an opinion that Weidlich was a white supremacist. A statement of opinion is not a statement of fact. She was expressing her opinion and with the picture, she was inviting her Facebook friends to agree or not. See the decision here. So, the court found the statement was not defamatory, because she was simply expressing her opinion.

It is a remarkable decision. The law in most states is that a statement of opinion is not slanderous. But, a statement of fact would be defamatory.

Notice too that the court did not find that espousing an organization that might be racist and displaying a flag that might be used by some white supremacist groups did not necessarily indicate Weidlich was a white supremacist. The judge did not find that mere display of questionable symbols does not in itself support the accuracy of the accusation. Truth is always a defense to an accusation of defamation. But, the court did not find that display of problematic symbols would in itself show the alleged truth of the slanderous statement.

But, still, I would recommend most people refrain from accusing other persons of being racists or white supremacists. It is exceedingly difficult to truly know what is inside someone’s head, or their heart.

The “outing” of celebrity sexual harassers continues. John Besh, the celebrity chef from New Orleans, has admitted to an improper sexual relationship. A female employee filed a complaint with the Equal Employment Opportunity Commission alleging he pressured her for a relationship. The New Orleans Times Picayune has reported that 25 current or former female employees reported various instances of sexual harassment by male managers at the Besh Group. John Besh resigned from the restaurant group that bears his name.

The Times Picayune reported that two EEOC charges were filed. One woman accuses Mr. Besh of pressuring her into a relationship. See Times Picayunereport. Mr. Besh responds that he believed the relationship was consensual. Like in the Army, no relationship between a higher ranking person and a lower ranking person is truly consensual.

Harrah’s New Orleans casino said it would sever relations with the Besh Group and rename its restaurant, now known as Besh Steak restaurant. A Besh Group spokesman said none of its thousands for current and former employees had ever filed a sexual harassment complaint during its 12 years before now. But, the Besh Restaurant Group had never had a Human Resources department until Oct. 11, just a few weeks ago.

John Besh, who talks about his family frequently on his television show, said he was resigning, so he could focus on his marriage. He publicly apologized to his employees. See CBS news report. The Besh Restaurant Group operates some 11 restaurants and employs 1200 persons.

Bowe Bergdahl was supposed to be sentenced on Oct. 23. But, instead, his lawyer renewed a motion he had filed before. Eugene Fidell re-argued a motion alleging there has been unlawful command influence (UCI). Pres. Trump talked about SGT Bergdahl last week, saying he cannot say anything, but he said things earlier. The President, in effect, affirmed his prior comments about that “traitor,” Bergdahl. The judge, Col. Nance, was not impressed by the prosecutor’s argument that Pres. Trump was simply responding to the reporter’s question. He had a “hard time” with that explanation.

So, Col. Nance postponed the hearing for a couple of days, so he can review cases about UCI. The challenge is this UCI is unprecedented. Never before has a president gone after one particular soldier. Pres. Nixon once referred to the My Lai massacre as a “travesty,” But, he did not focus on one specific soldier. Pres. Trump brought up SGT Bergdahl often during his campaign, referring to him as “dirty rotten traitor,” “horrible traitor,” “dirty no-good traitor,” and more. In the military, the President is always spoken of as the top person in the chain of command. Yet, in some ways, the President is removed from the military. So, the judge is being careful with this issue. As he should.

If a person needs an extended leave for treatment for a bad back, would the ADA require an employer to allow him an extra few months? The Seventh Circuit in Severson v.Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. 9/20/2017), said no. Ray Severson, left work for his full 12 weeks of unpaid leave under the FMLA. He then told his employer he would have to undergo surgery on his back. He needed disc decompression surgery. He would need at least two months off from work for recovery. HR told him his last day would be the last day of FMLA. HR added that he could reapply for his position when his treatment ended. In effect, he was fired. Later, when Mr. Severson recovered and was cleared to return to work, he sued is employer, saying the employer had failed to accommodate him.

The plaintiff argued on appeal that the company could have offered him long-term leave, a light duty job, or reassignment to a vacant job. The Seventh Circuit, however, simply ruled that a long-term leave is not viable/ Not working, said the court, is not a means to fulfill the essential functions of the job. If the employee cannot perform the essential functions of the job, then he is not qualified for the job. The court noted that EEOC guidance expressly states long-term leave is a possible alternative under the ADA, if the leave is of definite duration, is requested in advance, and is likely to enable the worker to return to work. But, the court insists if the EEOC’s position as correct, then the ADA would become a medical leave act. It would supplant the FMLA.

The decision contravenes caselaw in other circuits which have found long-term leave to be a viable option. See, e.g., Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000) (reasserting requirement for individualized analysis but not requiring accommodation because even after one year’s paid leave, followed by five months unpaid leave, plaintiff’s homeopathic physician only offered the vague possibility of returning in one to three more years, and suggested no other work he could do); Cleveland v Fed. Express Corp, No 02-3172, 2003 US App LEXIS 24786, at *13 (6th Cir Nov 28, 2003) (unpublished) (finding leave from August 20, 1997 to February 1998, extended to March of 1998 (6 months total) not unreasonable).

The court did not ask whether long-term leave would have presented an undue hardship for the employer. It found, instead, as a blanket rule, that leave longer than the FMLA leave of three months is per se too long. A blanket rule does not satisfy the individual assessment requirement of the ADA.

Colin Kaepernick has filed a labor grievance alleging the NFL has “colluded” to keep him from playing. His press release and the news accounts do not explain what his basis is for believing there is some on going collusion going. See NPR news report.

Having watched the NFL for most of my life, I know the owners are very independent, but sure, they are capable of agreeing on some things. But, it is a steep hill in trying to show collusion or conspiracy. He must show more than that one owner has discussed him and agreed he should not be signed by their respective teams. It is not enough that one owner says to another owner that Kaepernick is a problem. They must go further and say clearly they agree not to sign him to a contract. How would any player, much less someone with Mr. Kaepernick’s notoriety have access to that sort of inside discussion? My guess is he is simply frustrated at going one whole season and now into a second season without being signed by some team. NFL teams are always looking for another quarterback. Yet, he remains unsigned.

A quarterback’s skills are fungible. That youthful energy and ability diminishes over time. He must feel some pressure to get something going. But, as any judge will tell you, speculation is not enough.

Bowe Bergdahl is expected to plea guilty to a charges of desertion and misbehavior before the enemy. SGT Bergdahl’s lawyer has refused comment. But, a former U.S. Air Force JAG officer explained that pleading guilty makes sense. The evidence against the former Taliban POW is rather clear, he said. See San Antonio Express Newsreport. I previously wrote about SGT Bergdahl here and here.

Many veterans think SGT Bergdahl is a plain coward and that he deserted. But, I think most of us just think what he did was strange and stupid. I have heard stories about other service members doing things that were just odd. One soldier, I was told, tried to walk off the FOB in Kirkuk in civilian clothes with no weapon. He apparently just lost his senses. Serving in a war zone is incredibly stressful. People react differently.

The National Labor Relations Act provides that workers can form a union. The NLRA has been around since before World War II. Yet, we often forget that a major portion of the Act protects preliminary activity. Workers can discuss terms and conditions of their job. That sort of discussion can lead to the formation of a union. So, when Jerry Jones says he will not let a player play if he does not stand for the national anthem, he may be transgressing on the NLRA. Local 100 of the United Labor Unions has filed a claim with the National Labor Relations Board claiming his new policy violates the NLRA. See Bleacher report.

The NFL is a bit different from other industries. It is essentially entertainment. One might expect that an entertainment industry might have greater latitude in restricting employee conduct. But, that is just not likely. After all a strike itself would be very upsetting to fans and would certainly interfere with the business of the NFL. Yet, there is no doubt that a player has the right to strike. Flowing from that right to strike is the right to discuss terms and conditions of employment. That is what forming unions is all about. I am a veteran. I would always stand for the anthem. But, the NLRA is the NLRA. The law is the law. Respect for our laws is a duty for everyone, even NFL team owners.

Many workers believe they have been subjected to discriminatory comments by co-workers. Harassment by co-workers is sometimes referred to as a hostile work environment. It does not become actionable until management becomes aware of the harassment and fails to take action. But, what if the perceived discrimination is not necessarily discrimination? In Barnes v. Prairie ViewA&M, No. 14-15-01094 (Tex.App. Hou. 6/15/2017), Patrice Barnes, African-American, believed she was subjected to racist comments by co-workers. A long-time employee, she began complaining in 2007 about racist comments. A white co-worker observed ceiling insulation falling on people below and said it looked like an “old fashioned tar and feathering party.” Ms. Barnes explained to a third co-worker that tar and feathering referred to actions taken against slaves, and the white co-worker still made the remark again. Ms. Barnes accused co-workers of hiding paperwork and files, of asking her the same questions over and over, talking over her at meetings, etc.

The 14th Court of Appeals in Houston said this conduct did not amount to a hostile work environment. To constitute harassment, the actions by the co-workers must be severe or pervasive. The court addressed the tar and feathering remark and a second remark. A secretary told one of Ms. Barnes’ clients to go to the white agent, not Ms. Barnes, because Ms. Barnes’ office was the “black” program. It found those two remarks, even if they were deemed racist, were not enough. Two remarks are not enough to constitute a severe or pervasive harassment. Prairie View argued the remarks were based on mis-understandings. The court was not willing to characterize them as racist. Indeed, we have to comment that tar and feathering has some notoriety in American history, but at least to my knowledge, not involving slavery. A remark that is capable of two or more different meanings will not be deemed to be racist.

Regarding the other allegations of conduct by co-worlers and her supervisor, the court found no connection to race. Ms. Barnes argued that since she was the only African-American in the office and because she was the only person subjected to those actions, then it must be race related. The court would not go there. Most courts will not infer racism from targeted actions alone. There has to be something more. The Fourteenth Court did agree that racism need not be explicit. But, the plaintiff has not pointed to any evidence which would support a racist animus on the part of the supervisor. The court of appeals affirmed the grant of summary judgment. See the decision here.

I have been told myself by potential clients that an entire office is discriminating against him/her. But, it is exceedingly difficult to show several employees are acting in concert based on race. That sort of allegation would need better evidence, not lesser evidence.

The Equal Employment Opportunity Commission has sued a local icon, Whataburger. The Tallahassee Whataburger, the EEOC alleges, harassed a manager after she refused to hire only white people. The EEOC claims the General Manager told the assistant manager to only interview people with “white sounding” names. Vanessa Burrous, instead, hired seven black employees and one white employee. The GM later chided Burrous for the hiring and told her the order came from upper management. The GM allegedly added that our customer base is white and we want workers who reflect that base. Ms. Burrous says she was harassed and forced to quit. See San Antonio Express Newsreport.

Yes, it does violate Title VII to hire workers of a particular nationality or race, even if some customers might prefer persons of a particular race. If the plaintiff can support her case, Whataburger’s action would constitute a violation of Title VII. It is unfortunate that Ms. Burrous quit. It is difficult to show things were truly so bad that she had to quit – as opposed to simply wanting to quit. Whataburger is headquartered here in San Antonio.

The Texas Supreme Court heard oral arguments in the Clark v. Alamo Heights Independent School District case. The San Antonio Court of Appeals recognized same sex harassment in that case. The school district has now appealed the matter to the Texas Supreme Court. The lawyer for the district appears to be trying to un-do that decision. He argued that there was no evidence that the harassing coach, Anne Monterrubio, was gay or that she felt sexual attraction toward Coach Clark. I previously white about that Fourth Court decision here.

The Supreme Court is notoriously pro-employer. During the oral arguments, Justice Eva Guzman, asked as crude as Coach Monterrubio’s comments were, is there evidence that her comments were, is there evidence to indicate the comments were based on Coach Clark being female? That question suggests Justice Guzman is not ready to recognize same sex harassment. The comments were very crude, and clearly based on sex. The two female coaches discussed Coach Clark’s buttocks and breasts almost daily. If the justice has to ask whether those remarks were focused on the coach’s gender, then she will likely side with the employer.